UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY ANTONIO SHEPARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00201-D-1)
Submitted: June 9, 2009 Decided: July 10, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal filed pursuant to Anders v. California,
386 U.S. 738 (1967), Anthony Antonio Shepard appeals his
conviction and 264-month sentence he received after pleading
guilty to distribution of more than five grams of cocaine base,
in violation of 21 U.S.C. § 841(a)(1)(2006), and aiding and
abetting, in violation of 18 U.S.C. § 2 (2006). Anders counsel
notes no meritorious issues for appeal, but raises as a
potential issue the district court’s denial of a three-level
reduction in sentence for acceptance of responsibility. In
response, the Government has filed a motion to dismiss,
asserting the waiver of appellate rights included in Shepard’s
plea agreement precludes appeal of his sentence. Shepard filed
a pro se supplemental brief, arguing his attorney provided him
ineffective assistance by failing to adequately counsel him as
to the possible sentencing consequences arising out of his
relevant conduct. For the reasons set forth below, we affirm in
part and grant the Government’s motion to dismiss in part.
We first conclude that Shepard has waived his right to
appeal his sentence and its calculation. A defendant may, in a
valid plea agreement, waive his appellate rights under 18 U.S.C.
§ 3742 (2000). United States v. Wiggins, 905 F.2d 51, 53 (4th
Cir. 1990). We review the validity of an appellate waiver de
novo and will enforce the waiver if it is valid and the issue
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appealed is within the scope thereof. United States v. Blick,
408 F.3d 162, 171 (4th Cir. 2005). An appeal waiver is valid if
the defendant knowingly and intelligently agreed to the waiver.
Id. at 169. “An appeal waiver is not knowingly or voluntarily
made if the district court fails to specifically question the
defendant concerning the waiver provision . . . during the [Fed.
R. Crim. P.] 11 colloquy and the record indicates that the
defendant did not otherwise understand the full significance of
the waiver.” United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005) (internal quotation marks omitted). Ultimately,
however, the issue is “evaluated by reference to the totality of
the circumstances.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002).
The appellate waiver set forth in Shepard’s plea
agreement provided that Shepard agreed:
To waive knowingly and expressly the right to appeal
of whatever sentence is imposed on any ground,
including any appeal pursuant to 18 U.S.C. § 3742,
reserving only the right to appeal from a sentence in
excess of the advisory Guideline range that is
established at sentencing based on the applicable drug
weight and criminal history category, and further to
waive all rights to contest the conviction or sentence
in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting the
Defendant’s right to appeal based upon grounds of
ineffective assistance of counsel.
Our review of the record reveals that Shepard
knowingly and voluntarily waived his right to appeal his
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sentence. The waiver’s language is clear and unambiguous, and
the district court reviewed the terms of the waiver with Shepard
at the Fed. R. Crim. P. 11 hearing to ensure he understood it.
Accordingly, we conclude the waiver is valid and enforceable.
Because the sentencing issue raised on appeal falls within the
scope of the waiver that Shepard knowingly and voluntarily
accepted, the waiver will be enforced to preclude review of
Shepard’s sentence. Accordingly, we grant the Government’s
motion to dismiss Shepard’s appeal to the extent it challenges
his sentence.
Shepard challenges his conviction by arguing his
attorney provided him ineffective assistance by failing to
adequately counsel him regarding sentencing consequences arising
out of his relevant conduct, which resulted in the denial of the
three-level reduction in sentence for acceptance of
responsibility. Shepard intimates that such ineffective
assistance undercuts the validity of his plea. Unless an
attorney’s ineffectiveness is conclusively apparent on the face
of the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. James, 337 F.3d
387, 391 (4th Cir. 2003); United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (providing standard and noting that
ineffective assistance of counsel claims generally should be
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raised by motion under 28 U.S.C. § 2255 (2000)). We find the
record in this case falls short of this exacting standard.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we grant the Government’s motion to
dismiss, in part, and dismiss Shepard’s challenge to his
sentence. We affirm the remainder of the district court’s
judgment.
We require that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such filing would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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